Court makes Filing Modification Order to keep documents private

In a ruling handed down on 17 June 2026 in Various Claimants v Entain Plc, Mr Justice Trower made a Filing Modification Order ("FMO"), waiving the obligation to file documents on the public access CE-File under the new public access pilot scheme in CPR PD 51ZH. This is the first reported decision dealing with the power to make an FMO, and it offers some practical guidance on the factors likely to bear on future applications. Simmons acted for one of the interested parties in the case.

Background: CPR PD 51ZH and the Filing Requirement

CPR PD 51ZH (the “PD”) is a pilot scheme that came into force on 1 January 2026. It applies to the Commercial Court, the London Circuit Commercial Court, and the Financial List. Its purpose is to extend public access to litigation documents beyond the categories already covered by CPR 5.4C.

Under the pilot, once a document has been used or referred to at a hearing in public, it becomes a "Public Domain Document" and the parties are required to file it on the CE-File within a specified period (the "Filing Requirement"). Once filed, any third party has a legal right to obtain copies from the public access CE-File. This represents a significant shift from the previous position, under which non-parties would need to make a court application under CPR 5.4C before obtaining access to such documents.

The Court is empowered by paragraph 13(b) of the PD to qualify or waive the Filing Requirement by making an FMO. The PD does not, however, specify the factors the Court must consider. Until now, there had been no reported decision on how the Court would approach that question.

The Test Applied

Mr Justice Trower, who was a member of the working group behind the pilot scheme, held that the starting point for exercising the power to make an FMO must draw heavily on the principles set out by the Supreme Court in Dring v Cape Intermediate Holdings Ltd, adapted to reflect the framework introduced by the PD.

Open justice remains the baseline. The PD was designed to advance the open justice principle by giving third parties a legal right, not merely a discretionary entitlement, to access a wider range of documents in the designated courts. The idea was that providing access to these documents should cease to be a judicial act and become a merely administrative one. The starting point is therefore transparency, and it should not lightly be displaced.

A balancing exercise is required. The Court must weigh the value of the information in question in advancing open justice against the risk of harm that uncontrolled disclosure may cause to: (i) the effective conduct of the judicial process; and (ii) the legitimate interests of others, including parties to related proceedings.

Risk to concurrent criminal proceedings, which was the ground relied upon by the applicants in this case, carries significant weight. Where access to documents filed in civil proceedings would materially increase the risk of information prejudicial to the fair conduct of ongoing criminal trials entering the public domain, that weighs heavily in favour of making an FMO - provided it is suitably tailored to address the specific risk.

FMOs can be targeted. The Court has broad powers under paragraph 13 of the PD and the order need not be an all-or-nothing measure. Much of the discussion in this case focused on the possibility of redactions achieving the stated aims, but the fact that the parties in the civil proceedings were not parties to the criminal proceedings made identifying the scope of appropriate redactions difficult. In this case, the judge exercised the power under paragraph 13(e) to require placeholders to be placed on the CE-File in lieu of the documents themselves, preserving non-parties' ability to make a formal application to obtain access.

Why the Application was Granted

The application was made by the Crown Prosecution Service (CPS) in proceedings brought by two groups of shareholder claimants against Entain Plc under sections 90 and 90A of FSMA 2000. The claims alleged that Entain had failed to prevent bribery in its Turkish business, alleged conduct in relation to which a number of Entain's former senior managers have been separately charged with criminal offences. Three criminal trials are scheduled between February 2028 and March 2029.

All parties agreed that there was substantial overlap between the issues in the civil proceedings and those in the criminal proceedings. The judge accepted that making unredacted Public Domain Documents from the shareholder litigation accessible to any third party — and thereby potentially to future jurors — created a material risk of prejudice to the criminal trials. A reporting restriction order made under section 4(2) of the Contempt of Court Act 1981 was not, on its own, sufficient to address that risk.

As explained above, the FMO granted by the judge waived the Filing Requirement but required the parties to file a placeholder on CE-File in respect of each Public Domain Document. The placeholder needed to identify the document and the hearing at which it was used, and draw attention to the right of any non-party to make a formal application under paragraph 19 of the PD to obtain the document. If any such application is made, the CPS and the defendants in the criminal proceedings must be notified, so that they can participate and address any necessary redactions.

What This Tells Us About FMOs

This decision provides the first indication of how the Court will approach FMO applications and suggests a number of practical takeaways.

The starting position is transparency. Parties seeking an FMO face the burden of demonstrating sufficient countervailing interests. The power exists to modify or disapply the Filing Requirement, but the pilot scheme was introduced precisely to advance public access and the Court will not depart from that purpose without good reason.

Overlap with criminal proceedings is a weighty factor. Where civil and criminal proceedings share material factual issues, the risk of prejudicing the criminal process is likely to be treated as a strong basis for an FMO. The Court will look at whether there is a realistic prospect of prejudicial information reaching jurors, even indirectly.

An FMO will typically be tailored, not absolute. The approach taken in Entain - waiving filing but requiring a placeholder that preserves non-party application rights - suggests the Court will favour targeted relief over blanket exclusions wherever possible. Parties should think carefully about the form of order they seek and be prepared to propose workable procedural alternatives. Practical difficulties can matter. The Court was influenced by the fact that the parties to the civil proceedings were not equipped to take responsibility for redacting documents with criminal implications. Where there is a structural mismatch between who bears the filing burden and who has the knowledge to manage the associated risks, this may support an application.

An FMO does not close the door to third-party access. The order in Entain preserves the ability of any non-party to apply under paragraph 19 of the PD 51ZH. The FMO granted here is therefore not a guarantee of confidentiality; it changes the mechanism through which access must be sought to a more onerous one.